In the News
NJ Spotlight: NJ Lawmakers Set Sights on New Effort to Compel Dark-Money Disclosure
By Colleen O’dea
New Jersey’s 9-month-old law requiring so-called dark-money advocacy groups to disclose their funders is all but dead, leaving its sponsors working on a new transparency effort they hope to see enacted in time to cover the tens of millions of dollars expected to be spent in this year’s elections.
The state has agreed to a permanent injunction against the law as part of a settlement it has reached in two of the three lawsuits filed by politically active nonprofits and is working toward a similar agreement in the third. U.S. District Court Judge Brian Martinotti, sitting in Trenton, has yet to approve the settlements, but several sources say he’s expected to do so…
David Keating, president of the Institute for Free Speech that describes itself as a protector of First Amendment political rights, applauded the state’s decision to settle the suits, calling the New Jersey law “among the nation’s worst for speech and association rights.”
Keating, who has been called the inventor of political committees known as SuperPACs that can raise and spend unlimited sums of money as long as they don’t coordinate with candidates, said the law could have exposed people to “harassment and retaliation” for supporting certain organizations that would have had to have disclosed their contributions.
“Attorney General Grewal deserves credit for recognizing this law was indefensible,” Keating said. “Settling the litigation will lift the chill on free speech and save taxpayers from wasting more money on legal bills.”
Supreme Court
Ballotpedia News: SCOTUS asks solicitor general to weigh in on Calif. law requiring nonprofits to disclose donors
By Jerrick Adams
On Feb. 24, the United States Supreme Court called on United States Solicitor General Noel John Francisco to file a brief expressing the federal government’s views on two suits challenging a California law requiring nonprofits to disclose identifying information about their donors. The lawsuit names and docket numbers are Americans for Prosperity Foundation v. Becerra (19-251) and Thomas More Law Center v. Becerra (19-255)…
In its Feb. 24 order, the Supreme Court did not set a deadline for the brief…
What is at issue? California law requires nonprofits to file copies of their IRS 990 forms with the state. Schedule B of this form includes the names and addresses of all individuals who donated more than $5,000 to the nonprofit in a given tax year. The California law requires that nonprofits give the state copies of their Schedule B forms. Although the law does not allow public access of Schedule B information, court documents indicate inadvertent disclosures have occurred.
Time: How the Supreme Court Favors the Rich and Powerful
By Adam Cohen
Another group the conservative Court quickly came to the rescue of was wealthy campaign contributors. After Watergate, Congress passed a tough campaign finance law, with strict limits on both contributions and expenditures. In 1976, the Court struck down the expenditure limits, on the dubious theory that money equals speech under the first amendment. That let wealthy people spend as much as they wanted to elect candidates, and the Court has been opening the floodgates further ever since. In 2010, in Citizens United v. F.E.C., it took the radical step of saying that corporations have the same right to spend money to elect candidates as people do.
By striking down campaign finance limits, the Court has given wealthy people and corporations more power than ever over government… These super-donors use their contributions to extract government policies that enrich them further, including lower taxes on the wealthy… The freedom to spend unlimited amounts of money also gives the very wealthy the ability to promote their favorite social policies on a mass scale – including liberal ones, such as Michael Bloomberg’s aggressive support of pro-gun control congressional candidates.
The Courts
Washington Examiner: Trump reelection campaign files libel lawsuit against Washington Post
By Mike Brest
President Trump’s reelection campaign filed a libel lawsuit against the Washington Post, accusing the outlet of knowingly publishing false information that was detrimental to him.
The lawsuit, which was filed on Tuesday in the U.S. District Court for the District of Columbia, focuses on two stories published in June of 2019 that the president’s team claimed included “false and defamatory statements of and concerning the Campaign.”
Techdirt: Another Day, Another Bogus SLAPP Suit From Devin Nunes And Steven Biss
By Mike Masnick
A week after promising yet another defamation lawsuit, Devin Nunes and his lawyer Steven Biss have delivered, suing the Washington Post and reporter Shane Harris for defamation in Virginia federal court. Once again, I’ll remind you that Virginia has a very limited anti-SLAPP law, though that may be changing soon thanks, in part, to Nunes filing so many SLAPP suits in Virginia.
This latest lawsuit is more of the same. He’s seeking $250,350,000 (or basically the same amount Jeff Bezos paid for the entire paper a few years back) for both compensatory and punitive damages for (I’m not joking): “insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses.” Remember when Devin Nunes pretended to be a free speech supporter? Now he thinks that a newspaper owes him basically its entire value for insults and embarrassment. Come on.
FEC
Daily Beast: The Michigan Senate Race Has Become A Sh*t Show Legal Drama
By Lachlan Markay
The head of a dark money group supporting a top Republican Senate recruit in Michigan is threatening to sue state and federal arms of the Democratic Party over allegations that she violated campaign finance laws.
But Democrats say the objections only bolster their claims of illegal campaign coordination and now they are filing a Federal Election Commission complaint against the dark money group, formalizing its allegations of illegal politicking in one of the nation’s most crucial 2020 U.S. Senate contests…
At issue is a specific federal law that bars outgoing campaign staffers from joining a supportive independent political group for 120 days.
Free Speech
Fox News: Prosecution of WikiLeaks’ Julian Assange violates First Amendment
By Judge Andrew P. Napolitano
In the oral argument of the famous U.S. Supreme Court cases known collectively as the Pentagon Papers Case, the late Justice William O. Douglas asked a government lawyer if the Department of Justice views the “no law” language in the First Amendment to mean literally no law…
The Pentagon Papers Case is a profound explication of one of the great values underlying the freedom of speech; namely, the government cannot lawfully punish those who publish truths it hates and fears…
Regrettably, the Trump administration is pretending the Pentagon Papers Case does not exist. It is manifesting that pretense in its criminal pursuit of international gadfly and journalist Julian Assange, the founder of WikiLeaks…
The whole purpose of the First Amendment is to assure open, wide, robust debate about the government, free from government interference and threats. How can that debate take place in darkness and ignorance? If “no law” doesn’t really mean no law, we are deluding ourselves, and freedom is not reality. It is merely a wished for fantasy.
Techdirt: Spanish Government Moves Ahead With First ‘Fake News’ Prosecution
By Tim Cushing
In 2018, the Spanish government amended its Data Protection Law to align it with European regulations like GDPR. While doing so, it slipped in an amendment that targeted “fake news,” adding to an already-problematic law…
The amendment made the bizarre assertion that the existence of fake news somehow harmed Spanish citizens’ free speech rights…
The government could have limited itself to fighting questionable speech with less-questionable speech. In fact, it did do this. It hired fact checkers to debunk misinformation being spread on social media ahead of the 2019 elections…
A team of more than 100 Spanish police officers will trawl the internet for signs of fake news and cyber attacks in the build-up to next month’s snap election…
Officials will keep a particularly close eye on Facebook, its WhatsApp messaging app, Twitter and other social media networks under a security plan to protect the vote, the ministry added.
Philanthropy
Washington Examiner: Bernie Sanders’s war on charities
By Howard Husock
An excellent new National Taxpayers Union Foundation research paper analyzes the Sanders wealth tax, which would range from 1% on assets starting at $32 million to 8% for assets of more than $10 billion. In finding that the wealth tax “would have massive implications for American altruism,” economists Andrew Wilford, Andrew Moylan, and Jacob Plott note especially the potential for the assets of foundations to be taxed because of the link between pledged wealth by such donors as Bill Gates and Warren Buffett and the link with the direction of such donors – such that the foundation assets might be lumped together with the overall Gates’ billions. Their research estimates that the Gates Foundation could face a wealth tax of $3.8 billion per year, compared to the total of $4.5 billion in grants it made in 2018. The paper sees similar implications for the Dell Foundation, (Ray) Dalio Philanthropies, and the Omidyar Foundation…
As the paper puts it, “A wealth tax,” whether that of Sanders or Elizabeth Warren, who has her own version, “would throw a wrench into the worlds of any foundation or donor seeking to maximize charitable impact” and “would introduce a layer of tax planning that would significantly distort their incentives.” …
Philanthropically supported efforts by superdonors such as Gates or Peter Thiel can be seen as a sort of national venture fund, allowing a small percentage of GDP to be used for ideas that don’t have to pass a political test. What’s more, civil society groups (small and local) are more likely to focus on shaping values than on providing social services. In my book, Who Killed Civil Society?, I call this an emphasis on the “formative” rather than the “reformative.” This is the difference between the YMCA and the Boys and Girls Clubs (both of which are locally funded) and the Department of Health and Human Services. In addition, there is value for the social fabric in the local organizations that bring together volunteers – such as those who no doubt were in attendance at that 1981 Burlington event where Sanders spoke.
Online Speech Platforms
Forbes: A Law Against False Political Ads On Social Media Is A Terrible Idea
By Mark MacCarthy
At the recent National Association of Broadcasters event, Chairman of the House Antitrust Subcommittee David Cicilline (D-RI) repeated his intention to draft legislation to remove Section 230 immunity from social media companies that knowingly publish “demonstrably false” political ads.
The clear target of this proposal is Facebook, which has refused to fact-check candidate ads. The country needs a new law holding social media companies accountable for their conduct in elections but making them the arbiter of political truth is the wrong way to do it.
The Markup: Swinging the Vote?
By Adrianne Jeffries, Leon Yin, and Surya Mattu
Pete Buttigieg is leading at 63 percent. Andrew Yang came in second at 46 percent. And Elizabeth Warren looks like she’s in trouble with 0 percent.
These aren’t poll numbers for the U.S. 2020 Democratic presidential contest. Instead, they reflect which candidates were able to consistently land in Gmail’s primary inbox in a simple test.
The Markup set up a new Gmail account to find out how the company filters political email from candidates, think tanks, advocacy groups, and nonprofits.
We found that few of the emails we’d signed up to receive -11 percent-made it to the primary inbox, the first one a user sees when opening Gmail and the one the company says is “for the mail you really, really want.”
Half of all emails landed in a tab called “promotions,” which Gmail says is for “deals, offers, and marketing emails.” Gmail sent another 40 percent to spam.
For political causes and candidates, who get a significant amount of their donations through email, having their messages diverted into less-visible tabs or spam can have profound effects.
“The fact that Gmail has so much control over our democracy and what happens and who raises money is frightening,” said Kenneth Pennington, a consultant who worked on Beto O’Rourke’s digital campaign.
“It’s scary that if Gmail changes their algorithms,” he added, “they’d have the power to impact our election.”
Harassment
Tucson.com: Trump rally appearance a boon, burden for Mexican eatery
By Joe Ferguson, Arizona Daily Star
A Mexican restaurant in the sleepy town of Catalina has become ground zero for a political fight in the race for the White House.
The phone has been ringing off the hook for the last 48 hours. And the Facebook pages for Betty and Jorge Rivas have been flooded with insults and threats. It all started soon after Betty Rivas was called to the podium by Donald Trump during a rally Saturday in Tucson. The Republican presidential candidate brought Rivas on stage after her handmade “Latinos Support D. Trump” sign caught his eye.
“I love her,” Trump said repeatedly.
By Sunday night, the backlash had begun. Strangers called making nasty comments and threats. Others took to Yelp, submitting one-star reviews of the couple’s restaurant, Sammy’s Mexican Grill.
The crowd-sourced web site that offers reviews of local businesses stepped in late Tuesday to remove some of the comments. By then anonymous users had posted that Sammy’s was dirty, the food was lousy and had a pest problem.
“They are doing everything to shut us down,” Jorge Rivas said. “Saying you are a racist, you are a pig, you are going to burn, you are an idiot.”
The couple never expected attending the Trump rally would affect the business they built over the last two decades.
“Saturday was a great day because my wife was able to celebrate her freedom of speech,” he said.
Candidates and Campaigns
Wall Street Journal: Michael Bloomberg Ends Presidential Bid
By Tarini Parti
Michael Bloomberg is ending his presidential bid after spending hundreds of millions of dollars of his own money in just over three months in the race-an expensive bet on Super Tuesday states that was ultimately unsuccessful.
The former New York City mayor had earned just a few dozen delegates by Wednesday, as they were still being allocated, after spending $215 million on TV and radio ads in the 14 states that voted. The only contest he won was in American Samoa…
Overall, Mr. Bloomberg, who is worth $62 billion, spent at least $620 million to build a massive campaign operation of more than 2,400 people across the country and to blanket the airwaves and digital platforms.
Washington Post: Enough finger-pointing on Russian interference. Here’s how to prepare for 2020.
By Suzanne Spaulding
Finger-pointing about which candidate Vladimir Putin prefers doesn’t help; instead, we should try to better anticipate and understand how Russian information operations are intended to work against democracy…
The Russian government may no longer pay for online ads in rubles, but the lack of legal requirements for transparency – some of which could have been addressed with the stalled Honest Ads Act – means that there are still loopholes whereby bad actors can push dark money into politics. Russia uses its state-sponsored media outlets such as RT and Sputnik to push one-sided narratives, conspiracy theories and half-truths to its audiences. These reinforce and are fed by social media accounts that create pipelines for disinformation. Local media, often trusted alternatives to mainstream media, are also vulnerable, as they often don’t have large fact-checking departments. Because local media is more trusted, the Russian information operations include creating fake “local” news outlets.
We should expect to see “cheap fake” and “deepfake” videos, which are alterations of real videos made to convincingly show something that may not have happened. These videos are less likely to “prove” a lie than to create noise, thus contributing conflicting evidence to overwhelm members of the public and push them toward a post-truth reality.
Washington Post: Bloomberg is the second former New York mayor to bank on a silly strategy
By Jennifer Rubin
Bloomberg might surprise everyone on Super Tuesday, but there is a good chance that he wins no state and does not even finish second in any race…
Bloomberg spent gobs of money getting his name identification up, just as Tom Steyer did in South Carolina. Steyer wasted more than $150 million on just ads, and one suspects that after Tuesday’s results, Bloomberg will have wasted at least twice that amount… For all the haranguing from Sens. Bernie Sanders (I-Vt.) and Sen. Elizabeth Warren (D-Mass.), you really cannot “buy” a presidential nomination. It actually takes vision, a charismatic candidate, a competent staff and more. In a humiliating experience, a group of parishioners at a black church in Selma, Ala., turned their backs on Bloomberg as he came forward to speak. There is no amount of money that would outweigh the message that sends to other African American voters.
Perhaps at least in presidential elections, we should be less paranoid about the influence of big money, dark money or any sort of money. A lot of that money is unnecessary, although an army of consultants will con the unwary, ego-driven billionaire to spend his last dime trying to crush his poorer but more skilled opponents. Consider how much more successful Pete Buttigieg was than Tom Steyer while spending a fraction of the money.
Daily Caller: Sanders, Biden, Bloomberg Have Paid Combined $466,000 To Superdelegates
By Andrew Kerr
Leading Democratic presidential candidates Bernie Sanders, Joe Biden and Michael Bloomberg have paid a combined $466,000 to superdelegates who are likely to support their benefactors in the event of a contested convention, Federal Election Commission records show.
Sanders has spent the most so far on employing superdelegates…
Bloomberg’s campaign has also brought on Texas Democratic Party Vice Chair Carla Brailey and California Democratic Party Vice Chair Alexandra Rooker, both of whom are superdelegates, to serve as senior advisors to the former New York mayor, The Intercept reported. DNC member Sierra Yamanaka has also received salary payments from Bloomberg’s campaign, FEC records show.
The States
FlaPol: House cues up vote to end public financing of statewide candidates
By A.G. Gancarski
The House set up for a floor vote a Constitutional amendment that seeks to end the public campaign-financing system available to statewide political candidates.
The current system allows candidates for statewide office to receive public matching dollars for individual contributions for $250 or less.
The Rep. Vance Aloupis bill (HJR 1325) seeks “the repeal of the provision in the State Constitution which requires public financing of campaigns of candidates for elective statewide office who agree to campaign spending limits.” …
Rep. Carlos Smith wondered if the bill would give special interests more power.
The Senate version of this bill, SB 1110, died in the Judiciary Committee; however, the Senate can take up the House version.
The House version cleared all three committees of reference without a single no vote.
NHPR: N.H. Lawmakers Hit Pause On Proposal To Regulate Use Of Campaign Money
By Casey McDermott
An effort to more tightly regulate how New Hampshire politicians can spend their campaign money needs closer study, according to a House panel reviewing the proposed reforms.
The House Election Law Committee voted unanimously Tuesday not to advance a bill that would have prevented lawmakers from using campaign funds on personal expenses. Instead, they sent it to further study.
Rep. Wayne Moynihan, a Democrat from Dummer who sits on the committee, said it was important to make sure any proposed changes to the state’s campaign finance rules got careful attention.
“This isn’t being put into interim study as a polite way to kill it,” Moynihan said. “Theoretically, it’s being put into interim study because there’s good reason to think that we’re not careful enough in supervising these funds.”
Oregon Live: Even with walkout, a bill to undermine campaign finance reform progresses
By Dan Meek
One bill progressing through committees is House Bill 4124, which, if ultimately passed, would very likely ensure that a campaign finance reform measure Oregon voters adopted in 2006 will never go into effect.
That ballot initiative, Measure 47, imposed strict limits on the size of political campaign contributions to candidates. But it never went in effect, due to a clause suspending its effective date until the Oregon Supreme Court reverses a 1997 decision (Vannatta v. Keisling) that campaign contribution limits violate our state’s constitution.
HB 4124 would set July 1, 2021, as the effective date for Measure 47, if the Supreme Court reverses its previous ruling. Not only does that delay implementation of what voters already called for, but it could actually render the law unconstitutional, because it would impose campaign contributions limits in the midst of an election cycle, instead of at the start of an election cycle. (The Oregon “election cycle” ends on the date of the November general election.) …
Those advocating for this bill know the constitutionality problem and even submitted an opinion of the Legislative Counsel that warns of this possibility. But strangely enough, ensuring that Measure 47 never comes to pass appears to be exactly their intent.
Measure 47 not only imposed strict campaign contribution limits, but it banned corporations and unions from giving donations to candidates at all…
Measure 47 set its own effective date at the end of an election cycle. It also sought to ensure a level playing field by requiring that all candidate committees that still had money left at the end of the election cycle pay those funds, within 60 days of the end of the cycle, to the secretary of state to defray the cost of printing and distributing the Voters’ Pamphlet.
